Mandate Rule and Summary Judgment on Remand: Limits Established in Tilley v. Malvern National Bank

Introduction

Kenneth W. Tilley, individually and as trustee of the Kenneth Tilley Family Trust, sought to finance a real-estate development with Malvern National Bank (“MNB”) in 2009–2010. After MNB declined to fund the full $350,000 Tilley claimed was promised, Tilley sued for breach of contract, promissory estoppel, violations of the Arkansas Deceptive Trade Practices Act (ADTPA), tortious interference, negligence, and fraud. This dispute has traversed three appeals. The Supreme Court of Arkansas has twice held that a predispute waiver of jury trial was unenforceable, remanding “for a jury trial” each time. On the third remand, the circuit court granted summary judgment for MNB—on grounds neither party had argued—without providing a jury trial.

Summary of the Judgment

In Kenneth W. Tilley v. Malvern National Bank (2025 Ark. 29), the Arkansas Supreme Court addressed three issues raised by Tilley on appeal:

The circuit court’s alleged violation of the prior mandate by considering MNB’s summary-judgment motion “for a jury trial” remand.
The court’s sua sponte rationale for granting summary judgment on unargued grounds.
The appropriateness of summary judgment on the merits given disputed material facts.

The court held that (1) remand for a jury trial did not preclude consideration of a properly noticed summary-judgment motion, since the prior opinions dealt only with jury-waiver enforceability; (2) it was reversible error to grant summary judgment on a rationale neither raised nor briefed by the parties; and (3) while MNB is entitled to summary judgment on the ADTPA, tortious-interference, and negligence claims, the breach-of-contract, promissory-estoppel, and fraud claims must proceed to jury trial. The judgment was “affirmed in part; reversed and remanded in part.”

Analysis

Precedents Cited

Tilley I, 2017 Ark. 343 – Held that predispute jury-waiver clauses are unenforceable under Arkansas law and reversed the circuit court’s bench judgment.
Tilley II, 2019 Ark. 376 – Reiterated that the case must be tried by jury and that the circuit court lacked jurisdiction to validate Act 13’s retroactive waiver of jury trial.
Landers v. Jameson, 355 Ark. 163 (2003) – Clarified that a prevailing party need not obtain rulings on unpressed alternative grounds to preclude reconsideration.
Robinson Nursing & Rehabilitation Ctr. v. Phillips, 2023 Ark. 175 – Emphasized strict compliance with appellate mandates; failure to follow specific remand instructions justifies reversal and reassignment.
Ark. R. Civ. P. 56;
Ark. Code Ann. § 4-59-101(d)(1) (statute of frauds for credit agreements).

Legal Reasoning

1. Mandate Rule and Summary Judgment on Remand. The court reaffirmed that on remand a trial court must act only within the confines of the appellate mandate. Because Tilley I and II addressed only the unenforceability of the jury waiver, the mandate did not speak to summary judgment on the merits. Accordingly, MNB’s properly noticed Rule 56 motion could be considered despite the “for a jury trial” directive, so long as the court gave Tilley an opportunity to respond.

2. Prohibition on Sua Sponte Grounds. It is reversible error for a court to grant summary judgment on a legal theory the moving party never argued. Notice-and-opportunity to respond are elementary due-process safeguards. Here, the circuit court’s sua sponte finding—Tilley’s “unilateral reduction of collateral”—had never been briefed. The court therefore deprived Tilley of his right to contest that ground.

3. Merits of Tilley’s Claims. • Statute of Frauds – Inapplicable to fraud, promissory estoppel, ADTPA, tortious interference, and negligence (absent a contract element). • Breach of Contract & Promissory Estoppel – Triable issues exist (partial performance, witness testimony, conflicting loan-amount evidence). • Fraud – Disputed testimony about a concrete promise, not mere “puffing.” • ADTPA – MNB is a federally chartered bank exempt under the “regulatory safe harbor.” • Tortious Interference – No proof of a disrupted third-party expectancy, so summary judgment is proper. • Negligence – Absent a fiduciary or “special” relationship beyond creditor-debtor, the bank owed no duty.

Impact

This decision clarifies two important points:

Trial courts may entertain Rule 56 motions on remand even when the appellate mandate orders a jury trial, provided the mandate did not address summary judgment or limit such consideration.
Courts may not supply unargued theories at the summary-judgment stage. Any ground for dismissal must be noticed, briefed, and litigated by the parties.

Going forward, litigants will be vigilant in urging all viable summary-judgment arguments before the trial court, and judges will be mindful not to overreach the parties’ presentations.

Complex Concepts Simplified

Mandate Rule: An appellate order limiting what a lower court can do on remand; courts cannot exceed or alter that instruction.
Sua Sponte: Latin for “of one’s own accord”—when a court acts on its own initiative without prompting from the parties.
Notice-and-Opportunity: Fundamental due-process principle requiring that litigants know the legal grounds being asserted and have the chance to respond.
Regulatory Safe Harbor (ADTPA): State consumer-protection claims are barred against activities “permitted” by federal banking regulators.

Conclusion

Tilley v. Malvern National Bank establishes that while trial courts on remand may properly entertain summary-judgment motions unless expressly forbidden by the mandate, they may not grant relief on unargued, sua sponte legal theories. In this case, MNB may obtain summary judgment only on those specific claims—ADTPA, tortious interference, and negligence—for which it demonstrated entitlement under the parties’ briefing and the law. All other claims raise genuine disputes of material fact and must proceed to a jury trial in accordance with the court’s prior mandates.